Policy —

Gripe site prevails in domain cybersquatting case

Gripe sites that warn others about a product or service can't be taken down …

A gripe site that incorporates a company's entire trademark into its domain is still protected under the First Amendment, a US District Judge has ruled. In the case of Career Agents Network v. careeragentsnetwork.biz, the judge said that the gripe site made no effort to bolster its own business and was noncommercial, therefore protecting it from Career Agents Network's trademark claims and cybersquatting accusations.

Like most gripe sites, careeragentsnetwork.biz began after a customer of the Career Agents Network (CAN) became dissatisfied with the services provided. CAN provided a "business in a box" type service that included training, software, support, consultants, and more for anyone who wanted to get a business off the ground quickly. Lawrence White said he paid $49,000 for these services in 2008, but eventually discovered that the business was "not as lucrative as represented."

In early 2009, White registered the domain in question (as well as careeragentnetwork.biz) and put up a plain text, 50-word warning to visitors:

WARNING:

If you are considering investing in this “opportunity”, be aware that it is highly improbable that you will earn enough to cover your investment. If you proceed with this company you have been warned by those that know and have lost $20,000-$150,000 by trusting them and their “plan”

White also invested in a number of SEO tools in order to get his sites higher in the search engine rankings, including using keywords associated with CAN. As a result, the websites ended up being listed among the top search results when users tried to search for things like "career agents" or "career agents network." At the time of the domain registrations, White claimed that the actual CAN did nothing with its own Web presence at careeragentsnetwork.com.

This irked the real CAN, which argued in its complaint that it was a new company that had invested "hundreds of thousands of dollars" in its own trademarks. The company accused the (then-anonymous) White of registering the domains in bad faith with the intent to profit from CAN's marks, charging him with cybersquatting and asking for the domain to be transferred to CAN.

In his decision, Judge Robert Cleland said that CAN's case "must fail" because the company did not provide evidence that White had intended to profit from the domains. He did acknowledge, however, that White made some attempt to damage CAN's business by climbing the search rankings, but that it was only to warn other potential customers—an action that is protected under the First Amendment. Because White's websites didn't represent themselves as the real company websites for CAN and they provided accurate contact information, they were clearly gripe sites and did not infringe on CAN's marks.

As noted by TechLaw, the ruling included some extra details about what is required (or in this case, not required) to qualify as a "gripe site." careeragentsnetworks.biz did not include a disclaimer stating that it is not affiliated with CAN, for example—something that many gripe sites do for the explicit purpose of avoiding lawsuits like this—but that didn't make a difference in the ruling.

The decision has been applauded as a victory for the First Amendment, but is a frustrating one for trademark holders. Companies have been notoriously unhappy with the existence of gripe sites, though not everyone gives into legal threats. In 2007, we covered a case involving an Ars reader who was fighting a legal battle against Lowe's over his site, lowes-sucks.com, and in 2009, Goldman Sachs made headlines for trying to bully the creator of Goldmansachs666.com into shutting the site down.

When we spoke with EFF staff attorney Corynne McSherry in 2007, she told us that the courts have been clear that "gripe sites like this are protected—in fact, they want people to speak freely and share information about their experiences with various companies." As long as they don't represent themselves as the real company, it seems the courts are still on the side of dissatisfied consumers.

Jacqui Cheng
Jacqui is an Editor at Large at Ars Technica, where she has spent the last eight years writing about Apple culture, gadgets, social networking, privacy, and more. Emailjacqui@arstechnica.com//Twitter@eJacqui